R v Sparos [2022] NSWSC 1129

Supreme Court New South Wales

Medium Neutral Citation: R v Sparos [2022] NSWSC 1129 Hearing dates: 01 September 2022 Date of orders: 07 September 2022 Decision date: 07 September 2022 Jurisdiction: Common Law Before: Harrison J Decision: Bail granted Catchwords: BAIL – further release application – show cause offences – s 74 Bail Act 2013– where circumstances relevant to the grant of bail have changed since the previous application was made – disadvantage in preparing case for trial from custody – weak Crown case – bail granted Legislation Cited: Bail Act 2013 (NSW), ss 17(2), 74 Category: Principal judgment Parties: Luke John Sparos (Applicant) Crown (Respondent) Representation: Counsel: D Edwardson QC with D Carroll (Applicant)

Solicitors: MacDougall & Hydes Lawyers (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2022/205625 Publication restriction: Nil

Judgment 1. HIS HONOUR: Luke Sparos makes a further release application dated 13 July 2022, having previously been refused bail by Dhanji J on 25 November 2021. This application is therefore confronted with the need to satisfy s 74(1) of the Bail Act 2013. Mr Sparos contends that circumstances relevant to the grant of bail have changed since the previous application was made: s 74(3)(c). Mr Sparos must also demonstrate that he has shown cause why his continued detention is not justified. 2. Mr Sparos relies upon the following changes of circumstances: 1. His trial has been listed for hearing later than anticipated and he is no longer in custody for any other offences. 2. The presumed access to the brief inherent in Dhanji J's decision has not materialised. 3. The service of further evidence has weakened the Crown case. 1. Mr Sparos has been in custody since 5 May 2021. At the time of his previous application on 25 November 2021, Mr Sparos had not been given a trial date and he was serving a sentence for unrelated offending as the result of the revocation of his parole. Mr Sparos' trial has now been scheduled to commence in May 2023. However, he has not had adequate access to the brief of evidence or subpoenaed material. His sentence for unrelated offending expired on 24 July 2022. 2. Mr Sparos submitted that this amounted to a material change in circumstances since any further time in custody between July 2022 and his trial will be referable to the offences for which he is currently bail refused, being shoot with intent to murder and doing an act intending to pervert the course of justice. An increase to the length of time spent in custody awaiting trial has been held to be a change in circumstances for the purposes of s 74 of the Bail Act. 3. In my opinion, the circumstances have changed materially since the last application. Notwithstanding Dhanji J's concern that Mr Sparos had not been given adequate access to the brief of evidence, very little has changed. Some arrangements put in place by the prison authorities with the apparent aim of facilitating access to the wealth of material do not appear to have advanced the situation. Mr Sparos can also expect to spend more time awaiting trial than was thought to be the case when his Honour heard the first application. 4. It remains necessary for Mr Sparos to show cause why his continued detention is not justified. Mr Sparos maintains that the following matters are relevant to the show cause test in his case: 1. Difficulty gaining access to the brief of evidence in order properly to instruct his legal representatives and prepare for trial. 2. The length of time that he may be likely to spend in custody if bail is refused. 3. The strength of the Crown case. 1. Dhanji J was not satisfied that the show cause requirement had been met. He said this: "With respect to the first of those matters, I accept that it is of real concern that the applicant be able to have access to the brief of evidence, and be able to properly instruct his representatives. The situation that has pertained to date is clearly not satisfactory. The difficulty for the applicant in this regard, however, is that there is some optimism that the situation will change. He has been approved for access to a laptop containing the brief. That approval is, obviously, not particularly helpful in the absence of an actual laptop. To date he has not been provided with one, however, the courts are aware that the problem, in terms of access to materials, use of devices for visits and the like, have been particularly acute in the context of the pandemic, and particularly acute in recent times. It is expected that the situation will ease, as correctional institutions start to go back to something closer to normal conditions, if not normal conditions. I appreciate that there may be a degree of optimism in these observations. If that is the case, I make clear that a significant basis for my determination in this matter is that I anticipate steps will be taken to ensure the applicant has access to the brief and access to his representatives. If that turns out not to be the case, it will be plain that my expectations have not been met." 1. Mr Sparos now contends that the steps his Honour anticipated would be taken to ensure that he had appropriate access to the brief and to his legal representatives have not met his Honour's expectations. For example, from the affidavit of Carly Jane Hydes sworn 22 August 2022 it appears that Mr Sparos has continued to experience difficulties over the last nine months in securing adequate access to the brief. For example, his laptop has a maximum capacity of 32GB and is unable to cope with a brief extending to as much as 900GB with an expectation of more material to come. The proposal that Mr Sparos should utilise a shared computer in gaol by storing the remainder of the material on an external hard drive is itself of little practical assistance having regard to continued lockdowns and staffing shortages. This is particularly so because the material includes over 1,000 hours of surveillance material and in excess of 3,000 hours of listening device product. 2. Mr Sparos submits that this combination of circumstances presents an insurmountable hurdle for him. It means, in practical terms, that he cannot master the brief and cannot properly or adequately give instructions to his legal advisers. For example, the considerable volume of electronic material means that Mr Sparos requires daily access to the material in order to have enough time to review it. Mr Sparos only has access at present to a small fraction of all the brief material. Delays in uploading the new material have also operated to exacerbate this problem. Mr Sparos maintains that he cannot adequately prepare for his trial. 3. Mr Sparos also asserts that the Crown case against him is weak. This was a matter raised before Dhanji J. His Honour said that in his view the Crown case "is reasonably strong" although he "would certainly not describe it as overwhelming". Mr Sparos' contention needs to be examined. 4. The Crown case is that the victim of the shooting and Mr Sparos were at one time in gaol together. The allegation is that the victim seriously assaulted Mr Sparos with a makeshift weapon and that the shooting was an act of retribution or revenge for that incident. There is evidence to suggest that if Mr Sparos had a motive to kill the victim that might be inferred from these circumstances, that evidence is significantly weakened as the result of a number of other people being identified who also had a strong motive to do him harm. There are no witnesses to the event apart from the victim who did not see or identify Mr Sparos. The victim only "identifies" him by reference to his voice which the victim says he recognised. There is some other material to suggest that the victim did not recognise Mr Sparos' voice on a different occasion and that he may otherwise have expressed doubt about the accuracy of his recollection. There is no scientific or similar evidence, such as gunshot residue or DNA material that can be linked to Mr Sparos. The car said to have been used to convey the shooter to the scene contains no biological or other evidence inculpating Mr Sparos. A version of events given by Anita Adam, a witness who states that she heard no words spoken at the time of the shooting, detracts from the victim's account that the shooter spoke to him at the time of or during the volley of shots that the Crown says were fired. 5. The Crown case is predominantly circumstantial. That does not mean that it is for that reason weak. However, on Mr Sparos' reckoning, it is not a case that is likely to succeed at trial. In particular, there are very real questions about the reliability of the victim, a matter of some importance as the predominant, not to say almost exclusive, source of direct evidence. 6. In my view, the combination of Mr Sparos' wholly unsatisfactory access to the brief of evidence, coupled with the identified frailties in the Crown case, coalesce to satisfy me that Mr Sparos has shown cause why his continued detention is not justified. 7. It remains to consider whether the bail concerns identified by the Crown can be adequately ameliorated by the imposition of appropriate conditions. The Crown has nominated all four of the bail concerns referred to in s 17(2) of the Bail Act. That is not unusual. 8. I do not consider that Mr Sparos presents an unacceptable risk of failing to appear. The Crown has submitted that Mr Sparos is facing trial for an objectively serious and pre-meditated offence carried out for the purpose of personal retribution whilst on parole and inevitably faces a substantial full-time custodial sentence if convicted. Mr Sparos has a not insubstantial criminal record but has never failed to appear previously and has never been the subject of a warrant to secure his attendance. The Crown has acknowledged that the unacceptable risk of his non-appearance could be satisfactorily ameliorated by the sizeable surety being offered. 9. The Crown maintains that what it has characterised as Mr Sparos' "propensity to reoffend" suggest that he continues to present unacceptable risks of reoffending, including the risk that he may endanger the safety of the current victim and his partner and that he may interfere with evidence or contact Crown witnesses. Mr Sparos has previously been charged with doing an act with the intention of perverting the course of justice in 2016 for which he was found not guilty following a trial. Charges of threatening a person with the intention of influencing them as a witness and acting with the intention to influence a witness to procure an acquittal in the same year were withdrawn. 10. Mr Sparos is currently charged with destroying a mobile phone intending thereby to pervert the course of justice. It is alleged that when Mr Sparos was at the Surry Hills Police Station following his arrest, he stomped on his mobile phone, breaking it in half. The material before me does not reveal what, if any, damage was caused to the SIM card. 11. Mr Sparos has proffered a series of suggested conditions for my consideration in the context of considering whether the bail concerns identified by the Crown are capable of being ameliorated if he does not otherwise present an unacceptable risk. I accept that Mr Sparos is at some risk of reoffending, having regard to his criminal history, but in the particular circumstances of this application I do not think that these risks are unacceptable. To the extent that Mr Sparos presents risks that are acceptable, the conditions that I propose to apply will in my view operate to ensure, as far as that is possible, that these risks are reduced to an acceptable level. In forming that view, I have taken account of the fact that Mr Sparos will not be able properly or adequately to prepare his case for trial in a custodial setting. 12. Accordingly, bail is granted subject to the following conditions applying to Mr Sparos: 1. He is to be of good behaviour. 2. He is to live at XXX XXXX Road, Yowie Bay, NSW, 2228 with Mr Leo Lewin. 3. On release from custody he is to travel by the most direct route to the above address and is only to be released into the custody of Mr Leo Lewin. 4. He is to report to Miranda Police Station once daily between 6am and 6pm. 5. He must not leave the above premises at all, except for the following reasons: 1. Reporting to police as directed by the Court; 2. To attend pre-arranged appointments with his legal representatives between the hours of 9am and 6pm; 3. Attending court; 4. Attending to medical emergencies; 5. In the company of Leo Lewin. 1. He is not to take any illicit drugs or any prescription drugs unless lawfully prescribed to him. 2. He must not contact, directly or indirectly (except through his lawyers) any person who the police have told him are prosecution witnesses or who could be prosecution witnesses. This includes any direct or indirect contact in person, via telephone or any social media platform. 3. He is to wear a personal electronic monitoring (GPS) tracking device at his own expense. If he is called upon to do so, he must subject himself to the appropriate law enforcement authorities to examine and verify the GPS tracking device. 4. He is to not to leave New South Wales. 5. He is not to apply for a passport or other travel document. 6. He is to present himself at the front door of the above premises at the direction of a police officer to confirm compliance with the curfew condition. 7. He must only possess one mobile phone and the following information is to be provided to the officer in charge within 24 hours of obtaining a mobile phone: 1. The phone number; 2. The IMEI number of the handset being used; 3. The network provider for the mobile phone number. 1. He is not to be in possession of an encrypted phone such as a Blackberry or Cipher phone. 2. One acceptable person, namely Leo Lewin, is to enter into an agreement to forfeit $2,000,000 with security against the property at XXX XXXX Road, Yowie Bay, NSW, 2228 if he fails to appear before the Court in accordance with the bail acknowledgment. 3. One acceptable person, namely, Elly Greenfield, is to enter into an agreement to forfeit $100,000 with or without deposit if he fails to appear before the Court in accordance with the bail acknowledgment.